DFA Forum on Faculty Copyrights, January 16, 2001

Ben McCoy, DFA chair opened the forum, mentioning that the Davis Faculty Association is an independently supported organization, free of the restraints on the Academic Senate which limit that body's ability to advocate for the faculty, as in lobbying the Legislature. The UC faculty associations see this as one of their primary roles, to advocate for faculty welfare and working conditions by lobbying both the UC administration and the California Legislature. The Jan. 16 forum was based on one such very successful legislative effort by the UCFA.

The following is a summary of the main points raised at the forum.

Charles Nash, UCD Professor Emeritus, Vice president of the UCFA council, was a participating co-sponsor of recently-enacted legislation which protects original material presented in lectures from unauthorized recording for commercial purposes
Federal copyright does NOT protect lectures (or other material not in tangible form)
But, lectures are protected by California Civil Code Section 980, so faculty do own their lectures.
They must protect those rights themselves, i.e. by suing an offending party.
This new law Sections 66450-66452 of the California Education code, authorizes California officials, such as the Attorney General or a local district attorney, to intervene to protect those rights
The law requests the Regents of UC, in consultation with the faculty to establish a policy to define what is allowed (so that Classical Notes will not be breaking the law!)

Leslie Kurtz, Professor, UCD Law School, Intellectual Property Expert, and member of UC systemwide standing committee on UC copyright policy.
Historically little interest in lectures or lecture materials-negligible value.
New technologies make these more useful (online classes) and thus possibly more valuable.
Other than in the academic community, most work created while employed is considered work for hire, owned by employer.
Under the 1909 copyright act, there was a teacher exemption to the work for hire doctrine. It can be argued that the exemption still exists, as it has long been the academic tradition that professors own the copyright to their scholarly work. For materials prepared for teaching, the legal situation is particularly unclear.
Good arguments can be made to extend tradition to these new situations, but without case law or new statutes, the situation is uncertain.

Kim Mueller, Intellectual Property Lawyer from Sacramento
Even where the law is not clear, there are measures you can take to lessen the risk of needing a lawyer to protect your work - or at least improve your chances of enforcing your rights if need be.
You can sell some or all of the bundle of rights known as copyright, so agreements are important. Read the fine print and don't sign what you don't understand.
Correspondence can establish a tacit agreement even if you don't sign a contract, so don't ignore messages that deal with your classes, lecture materials or other scholarly work.
Even if you are working in collaboration with UC administration to create instructional materials, be aware of the possibility that you may retain rights of joint ownership in the resulting work.
Monitor developing policy at UC-it will affect you!
Notify your classes of the significance of 980 related to live lectures, and put copyright notices in your handouts. These notices can head off a lot of problems, or at least preclude claims of "innocent infringement." (A good simple form of notice is "Copyright 2001 by UC Professor. All Rights Reserved.")
Look out for improper use of your material (monitor websites such as collegeclub.com) and complain quickly. If you do nothing for a long time it may be assumed you agree with the "use" of your material and any legal battle will be much more difficult to win
Registration of copyrighted material also strengthens your legal position. In particular, timely registration - meaning within 3 months of the first public distribution of a work - preserves your ability to collect "lump sum" damages and legal fees as provided by federal law.
Even though there are uncertainties in the law, there also are strong legal grounds for faculty to claim ownership rights in lecture material, unless rights have been signed away in a contract. These same grounds provide a basis for enforcement actions when needed.

Alan Elms, DFA Representative, Professor of Psychology
Web services threaten copyright, but are a small risk
The reuse of lecture materials by UC using technology to accommodate more students is a very large risk to the faculty
Vigilance! The faculty must be aware of the situation or we could be taken by surprise
There is no risk if we participate fully in the implementation of online or distance education material and are full partners in any agreements to the use of these materials.

Discussion Issues
In general, it appears that the faculty own their scholarly work unless the university makes an extraordinary contribution to the final product. However, the meaning of extraordinary is not well defined.
If you want clarity in the ownership of your work vis a vis the University, then set up a contract to spell that out.
Be careful, as your ownership rights can be sold outright by an agreement.
University policy requested in Education code section 66452(A) should prohibit the commercial use of all lecture material except for a short list of permitted uses, such as Classical Notes, exchange between students in the same class, and with written permission from the instructor.

We invite your comments. Simply reply to this email. The DFA might choose to forward comments to the Standing Committee on Copyright that was formed to explore the issues surrounding copyright and potentially to establish UC policy. The committee is chaired by Rory Hume, Executive Vice Chancellor at UCLA. If you do not want your comments forwarded, or wish to do so only anonymously, please let us know.

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